"A majority taken collectively is only an individual, whose opinions, and frequently whose interests, are opposed to those of another individual, who is styled a minority. If it be admitted that a man possessing absolute power may misuse that power wronging his adversaries, why should not a majority be liable to the same reproach?" - Tocqueville, Democracy in America

Loyal Followers

Friday, August 07, 2009

The ISA is not Comparable to the Patriot Act (USA) and the Terrorism Acts (UK)

Ever so often, when the subject of the ISA and the various abuses of the ISA are brought up, leading to calls for the abolishment of the ISA, the Government, through various Ministers, spokespersons of some NGOs (which seem to grow like poisonous mushrooms after an afternoon shower nowadays), some UMNO leaders or whoever would remind us that even the USA and UK have preventive detention legislation.

This morning, my friend e mailed me a link to a poll on whether the ISA should be abolished at the Home Ministry web site. I quickly went to the said web site to cast my vote.

There are 5 questions posed to the visitors with 3 possible answers given to each of the question. As of this morning, 89% think the ISA is draconian. 93% say they know what the ISA is about. And 93% say that the ISA ought to be abolished.

"Do you know, the USA and Britain also have preventive (detention) legislation known as the Anti-Terrorism Act and Patriot Act. ISA (Malaysia) is among the law which was referred by them."

Well, first of all, there is no such thing as an Anti Terrorism Act, whether in the USA or Britain. There is however the Terrorism Act in Britain, either the year 2000 or 2006 Acts. So which one is the Home Ministry referring to?

Secondly, the question is just another example of the "Syiok Sendiri Syndrome" (or in short, "The 3 Asses"). Since when has the USA's Senate House or House of Representative referred to the ISA while thinking about, drafting, debating or passing the Patriot Act? And I doubt whether the House of Commons or House of Lords in the UK referred to the ISA while debating the Terrorism Act.

So, this is either The 3 Asses at work or a limp attempt to justify the ISA by saying that even the USA and the UK had referred to the ISA while debating their preventive detention laws. Even if it's true, the obvious question is, "so bloody what?" A wrong is a wrong regardless of it being committed by America, Britain, India or Nepal. It is a matter of, and let me type this in bold again, Universal Human Rights.

Thirdly is this. And I would pre-empt this by saying that this is the part which makes me, for the lack of an English word, "jengkil", "jelak", "mual" and "nak temuntah"! (the last two items mean "nauseous" and "want to vomit"). This is the part which always rile me up. Not because it is shallow. But because it presumes that everybody is an idiot. It riles me up because I am not an idiot, just like everybody else. Even if I was an idiot, I am still riled up because it is an insult to every idiot!

The thing is this. That question is there in order to justify the ISA by referring to the so called fact that even the USA and the UK have preventive detention laws in the form of the Patriot Act and the Terrorism Acts respectively. That is vile. It is misleading and almost dishonest. And most of all, it is hypocritical!

The truth is the Patriot Act and the Terrorism Act do not come close to the draconian nature of the ISA.

The Terrorism Act, for starters, only apply to terrorist or acts of terrorism. Act of terrorism is defined as :

(a) involves serious violence against a person,

(b) involves serious damage to property,

(c) endangers a person's life, other than that of the person committing the action,

(d) creates a serious risk to the health or safety of the public or a section of the public, or

(e) is designed seriously to interfere with or seriously to disrupt an electronic system.

Contrast that to the ISA. It applies to whatever and whomsoever the Home Minister feels is a threat to national security. Even national security is not defined. History would show that someone who had not done anything could be deemed a threat to national security under the ISA. Remember Teresa Kok? History would also show that the definition is so lax so much so that a woman could be arrested under the ISA to protect her own safety. So, please. Try harder.

Then, under section 41 of the Terrorism Act (2000), police detention is only up to 48 hours. That can be extended to 7 days. Even then, the extension can only be applied for and given by a Judicial Authority, which means, the Court. During the hearing for extension, the arrested person can be legally represented. The 7 day period is now enlarged to a period of 28 days. Last year, Prime Minister Gordon Brown asked the period of detention be extended to 42 days. The House of Lords told him and his Government to go and fly the proverbial kite!

Compare that to the ISA? Please don't make me puke. The initial arrest can last up to 60 days. During that time the police is not required to allow legal representation. They can lock you up in a dungeon somewhere between the sea and the sky. Nobody will know where you are. Not even yourself will know. History will show that torture takes place. The interrogation is done round the clock. It is unregulated. You are reduced to just a heap of flesh and bones. That is all. Your human dignity is taken away. Your loved ones cry in despair. A wife without a husband. Children without a father. 60 days!

The Terrorism Act, in schedule 8 spells out procedures from the time one is arrested until the time one is produced before a Judicial Authority for an extension of detention. Lawyers will be around. Officers must identify themselves. There are even provisions for audio and visual recordings.

Before extension is given, the Government will have to show that it is necessary to extend the detention for various reasons which are clearly spelt out in the Act.

Under the ISA however, the Government or the police has to do nothing at all. There is an automatic right to detain for 60 days.

Then the Home Minister can issue a 2 year (read, 24 months or 730 days and contrast that to 28 days under the Terrorism Act) detention order. You will then rot in Kamunting. That can be extended indefinitely subject to the order being made for not more than 2 years at any one time. Which means, you can be detained till Armageddon!

To top it up, the UK has the most highly respected High Courts. Courts which will fearlessly guard the rights of the citizen against the might of the Government. Application for judicial review or for writ of habeas corpus can be freely made to the High Court. The Court would then review the detention order and see whether the Government has exercised the power to detain properly and in good faith.

And what about the Malaysian Judiciary? They will shout at you even when you are just spelling out your name. And when you get to argue, they shout "not relevant" at you. They even sat without proper coram! To top it up, Dr Mahathir has rendered the Court to be mere proof reader. Habeas corpus is available but the Court can only look into whether the Government has filled in the right form, or has spelt the name correctly, or has used the right fonts.

Thank God that in the RPK case, Justice Datuk Syed Helmy had held that the Court had the power to see whether the Government had committed a jurisdictional error in issuing the detention order. Regardless, that decision is now pending appeal in our Federal Court.

So, please. Do not even begin to compare the Terrorism Act with the ISA. Save my blood from boiling.

Then the Patriot Act. Under this Act, detention is for 7 days. It is applicable only to aliens and not citizen. It is also applicable to terrorists. The AG then must charge the detained person or institute deportation proceedings. He could also sign a certificate to detain the person for 6 months. This 6 months can be extended indefinitely as long as the period does not exceed 6 months at any one time.

The AG then must submit a report to the the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate every 6 months on the detention.

Habeas corpus is also available without limitation. Application may be made to the Supreme Court.

Here, under the ISA, there is no such provision. In any event, the Obama administration has closed down Guantanamo Bay. So, it is history. Furthermore, the Patriot Act also came with an expiry date. The ISA has however existed for almost 50 years.

Most of all, have we ever ever seen or heard that the opposition leaders, academicians, journalists, social activists or someone who has converted from Islam to Christianity been detained under either the Terrorism Act or Patriot Act?

I better stop. Because I am getting sick. And the mutton curry I ate just now is threatening to make its way up my esophagus, pass my throat, into my mouth out into the open air.

65 comments:

Anonymous
said...

Hi Art,

Thank you for enlightening us idiots on the Terrorism and Patriot Acts in relation to ISA. Your learned insights is much appreciated. Please keep the candle burning with your marvelous articulations as idiots like us need someone like you to illuminate the path of justice against those morons.

Most of them who speak of the Patriot Act in Comparison to ISA either don't know jack about it, or are just out to hoodwink the ignorant public. A good example is Hishamuddin's statement on al-Jazeera that the Alleged JI fella was arrested under ISA "because did/planned something" which was "unmentionable".A good write-up about the ISA is given by Mr. Wong Hon Wai in "The role of fundamental liberties in the evolution of Malaysia as a democratic society." It can be found here:http://www.geocities.com/CapitolHill/6954/hressay.htmand here:http://cruzinthots.blogspot.com/2008/09/isa-in-malaysia-pt-i.html

In the 1957 Merdeka Constitution, a proclamation of emergency and laws passed during such an Emergency shall cease to be in force at the expiration of two months from the date of proclamation. They would only continue to have force if they have been approved by a resolution of each House of Parliament before the expiry of the specified period. Such sunset provision was meant to prevent abuses by the Executive.

However, the Constitution Amendment Act 1960 removed this highly desirable protective mechanism by providing that neither the Proclamation of Emergency nor the laws passed automatically lapse after two months. Instead, they remain in force indefinitely, until both Houses of Parliament pass annulling resolutions [9]

As the consequences of this 1960 amendment, there are 4 proclamations of Emergency that are still valid and in force today as none of them had been revoked or annulled [10].

Thank you. Thank You.That son of a gun cannot fool us now. But the who cares what other countries do.They don't budge into hotel room to see who is f.... whom like what is done here.They don't destroy sects like Sky Kingdom?They allow peaceful demonstrations. Here they fire tear gas and water canon.Why not compare those with ours?

Well said and how I wish all the umno ministers can think like you. Even if they have 20% of your brain thinking power, malaysia will be doing well. Unfortunately they have shit in their brain and shit we are getting.

A friend emailed me about the poll and as I logged on to vote, I was also thinking the same about the last question; that it was merely a trick to lend support to the ISA in that even the US and UK actually looked to our Malaysian ISA for 'inspiration'!!

I was upset that Hisham and his guys at the Home Ministry took us for idiots. After reading your commentary, I am truly enlightened as to the BIG difference between their Partriot Act (USA) and Terrorism Acts (UK)and I am now very angry too.

Thank you for speaking up and enlightening all of us who have access to the internet. We should all encourage others to access sites like yours to counter the government propaganda to fool the common people and then explain to our friends and people in the community so that eventually, more and more citizens will see through the big farce that is BN.

... { It is undeniable that malays are stupid, incapable and lazy. Why don't they just humbly admit the facts and repent and learn from other races especially Chinese? }....YOU are indeed so coward hiding under your anonymous < goodman > non-identity , condemning the malays as a whole , and speaking of their religion, you know nothing of....shame on you ,,,, sounds like an MCA chinese you are...maybe the ISA is suited for people like you...yeah... the rascist.

Thanks for the research and the comparisons between the various anti-Terrorism Acts.I am sure the USA and UK studied our ISA laws when they passed their own acts.And I am also sure the UK must have been horrified by the extent to which the ISA has been amended since the "bad old days".In that way, the ISA may be considered the "mother of all draconian laws".Maybe we can start a petition to the UK government to condemn the original piece since they did not take it back with them after independence?

Everybody knows that we are governed by seemingly intellectual morons who will fall all over themselves in their attempt to mislead us by conjuring all sorts of filth and fallacies in an attempt to pull the wool over our eyes, hoping that we would be so stupid and gullible to shallow lies hook, line and sinker.

Actually these morons have a deep seated disrespect for the people in their condescending.despicable way they continously treat us like idiots.

It doesn't matter what your race or creed is BUT as long as we allow ourselves to be enslaved by the BN govt. ; we all are the stupidest , most incapable citizens of our land. So do the right thing , we must insist on the abolition of ISA.

Thank you Sir for another master piece and idiots like us can understand. Well, if idiots can understand, wonder why the high and mighty ones in the govt can't see the truth ? Are they worse than us,....idiots and if yes, what are they then ???

No wonder you are called " The Articulate One " and one who writes so passionately.

"Then the Patriot Act. Under this Act, detention is for 7 days. It is applicable only to aliens and not citizen. It is also applicable to terrorists."

If you're saying that the U.S. Government can detain only ALIENS, then you know squat about the U.S. Patriot Act. It can also detain people, without charge and without access to counsel, it considers 'enemy combatants' and these may be U.S. citizens and non-U.S. citizens.

Thank you for reading and commenting, although I don't understand why you have to sound agitated and confrontational.

From my squat-knowledge of the Patriot Act, yes, section 412 only empowers the US Government to detain aliens and not citizens. I have not come across any provision in that Act which empowers the US Government to detain citizen. I would be obliged if you could enlighten me of the provision or provisions which you are talking about.

Section 412 says:

`(1) CUSTODY- The Attorney General shall take into custody any alien who is certified under paragraph (3).

`(2) RELEASE- Except as provided in paragraphs (5) and (6), the Attorney General shall maintain custody of such an alien until the alien is removed from the United States. Except as provided in paragraph (6), such custody shall be maintained irrespective of any relief from removal for which the alien may be eligible, or any relief from removal granted the alien, until the Attorney General determines that the alien is no longer an alien who may be certified under paragraph (3). If the alien is finally determined not to be removable, detention pursuant to this subsection shall terminate.

`(3) CERTIFICATION- The Attorney General may certify an alien under this paragraph if the Attorney General has reasonable grounds to believe that the alien--

`(A) is described in section 212(a)(3)(A)(i), 212(a)(3)(A)(iii), 212(a)(3)(B), 237(a)(4)(A)(i), 237(a)(4)(A)(iii), or 237(a)(4)(B); or

`(B) is engaged in any other activity that endangers the national security of the United States.

“Then the Patriot Act. Under this Act, detention is for 7 days. It is applicable only to aliens and not citizen.”

Nothing can be more misleading than this attempt to downplay the significance of this piece legislation.

This very controversial and unpopular piece of legislation gives sweeping powers to the U.S. President to detain not just aliens but people deemed ‘enemy combatants’ and unlawful combatants who could be non-U.S. citizens or U.S. citizens.

The Act deals with wide ranging issues – from electronic surveillance to intelligence gathering, money laundering, bank secrecy, disclosure and privacy issues etc. They affect citizens and non-citizens alike. To suggest otherwise is to say that acts of terrorism can only be committed by aliens. How stupid is that??

The U.S. Patriot Act is a threat to the 1st, 4th, 5th, 6th, 8th and 14th Amendments of the U.S. Constitution. The 14th Amendment in particular concerns both citizens and non-citizens. Both are equally entitled to the rights of due process and equal protection of the laws.

S. 412 of the U.S. Patriot Act 2001 deals with the amendment of the Immigration Nationality Act (INA 1952) an Act which deals with aliens and immigration issues. Hence the reference to aliens.

Just as much as you accused me of downplaying the Patriot Act and trying to mislead, I could also accuse you of overplaying the same Act and trying to mislead by your reference to the power of surveillance and to curb money laundering etc in that Act.

You see, this article is about preventive detention provisions in our ISA as compared to the Terrorism Acts and Patriot Act. That is why I did not refer to all the other provisions in the Patriot Act as they do not concern preventive detention law.

Our ISA is all about preventive detention. It is not as refined as the Patriot Act or the Terrorism Acts at all.

I refer to section 412, which, as correctly pointed out by you, amended some provisions of the Immigration Nationality Act because that is the ONLY preventive detention provision in that Act. And it applies only to non-citizens.

I can't find any preventive detention provisions which apply to non-citizen in that Act or to any "enemy combatant" as stated by you. I would be obliged if you could enlighten me if there is one preventive detention provision which applies to citizen.

I am however glad that we share a common ground. You state that the Patriot Act is against the US Constitution. I agree. A fortiori our ISA viz-z-viz our Constitution.

Art. 10 (2) is only talking about the curtailment of the freedom of speech, association and assembly. It is not a carte blanche for the government to deprive citizens of their personal liberty without trial.

Perhaps what you meant to refer to is Article 149. That is the Article which is relied upon to promulgate and justify the ISA. Not Article 10.

That notwithstanding, the way the ISA is worded still makes it unconstitutional. Please see our argument in the RPK judgement. It is however pending adjudication by the Federal Court.

The U.S Patriot Act allows the U.S President wide ranging powers in the fight against terrorism.

Jose Padilla is a U.S. citizen arrested on a warrant issued in connection with the 9/11 attacks, and was held for a month without charge and access to counsel, and later President Bush had an order issued so Padilla could be detained further without notice to family and attorney. The U.S> President was able to do this simply be classifying his as an enemy combatant according to the law.

I could easily say you know squat about our Constitution due to your mistake on article 149. I did not do so and don’t intend to do so. That is because I value a healthy discourse and an ethical one.

Thank you for bringing my attention to the case of Jose Padilla. I must confess I did not know of this case before. I have done some googling.

For your information, he was not detained under the Patriot Act. That Act has no provision for preventive detention other than under sec 412 which applies only to aliens and not citizen. That was what I had said.

The term enemy or unlawful combatant was coined by the US Supreme Court decision in ex parte Quirin. Basically they are subject to capture and detention as well as trials under military provisions because they are regarded as prisoners of war rather than ordinary criminals.

After 9/11, the Congress authorised the War Powers Resolutions which mandated the President to “use all necessary and appropriate force against those nations, organizations, or persons” he thinks are responsible for 9/11.

Using that mandate, the President issued a Presidential Military Order known as the "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism" which allowed "individuals ... to be detained, and, when tried, to be tried for violations of the laws of war”.

Jose Padilla was arrested and detained under this Presidential Military Order and not under the Patriot Act.

Your argument that the Patriot Act allows detention of citizen is therefore not supported and is, with respect, wrong.

"I could easily say you know squat about our Constitution due to your mistake on article 149."

Hey, there is more than one way to skin a cat. We all know that. I still say you know squat about the U.S. Patriot Act.

What I said was the U.S. President derives much of his powers in the fight against terrorism from inter alia the sweeping powers given to him by this Act.

Your argument to limit the debate to Sec. 412 and to the U.S. Patriot Act is merely an attempt to cover your ass.

As for the Malaysian Constitution, I merely wrote from memory and didn’t bother to google, and your mention of Article 149 jolted my memory of it. At least I have enough respect of the law to believe that any legislation passed by Parliament and which has remained on the books for a good part of five decades or more unchallenged, cannot mean without more that it is void as being ultra vires the constitution. I have not had the pleasure of reading the judgment you mentioned but I’m confident the Federal Court will find its way to a reasoning, however convoluted it may be, that will preserve the status quo.

The U.S. Patriot Act is not 'against' the U.S. Constitution like you wrote. Provisions within the Act represent threats to the various Amendments in the Constitution.

Your use of such loose language steeped in generality and low in specificity is evidence of your condescending attitude towards your readers.

As for your argument that ISA should be abolished, are you saying that since cars can be used as a weapon that we should stop manufacturing cars? We’re living in a post 9/11 world and there is need for such legislation. The Act should be amended to restore the right to judicial review and legislation such as the ISA (and constitutional provisions like Article 153) must carry a sunset clause and made subject to periodic review by the country’s parliament.

Hahah...I have proven you wrong on the applicability of the Patriot Act to US citizen and that the preventive detention provision there is only applicable to aliens. You are the one who is wrong Anon, not me.

And I have shown that Jose Padilla was not detained pursuant to the Patriot Act. rather it was pursuant to the Presidential Military Order as mandated by Congress. So, you are wrong again.

But still you are accusing me of being condescending etc. I rest my case.

Questioning constitutionality of a piece of law, no matter how old it is, does not mean I disrespect the law. That means I am a vigilant citizen who is not ready to accept whatever that is shoved up my throat by the Government. You think it is disrespectful. That is your right. That also reflect the opposite direction of our approach to laws. And Ido not wish to argue on that anymore.

I know squat about the Patriot Act? Hahah...who made a wrong and baseless and totally unsupportable proposition in the first place. Think about it.

Quote:"This very controversial and unpopular piece of legislation gives sweeping powers to the U.S. President to detain not just aliens but people deemed ‘enemy combatants’ and unlawful combatants who could be non-U.S. citizens or U.S. citizens."End quote.

There. You said that "this very controversial piece of legislation" (that's the Patriot Act that you were referring to, wasn't it?

First I know squat. then I misled. After that I was condescending. And now I apparently pay scant regard to the truth. Oh well...

You are the one who is trying to wriggle your way out of a totally unsubtantiated and unsupportable proposition. I have shown and demonstrated that you are wrong.

But rather than admitting defeat with dignity, you accuse me of this and that.

Quote:"This very controversial and unpopular piece of legislation gives sweeping powers to the U.S. President to detain not just aliens but people deemed ‘enemy combatants’ and unlawful combatants who could be non-U.S. citizens or U.S. citizens."End quote.

That statement is also wrong. The Act does not give sweeping power to detain citizen at all. I have shown that it only give power to detain a non-citizen.

You insisted that it does. So, please show me the provision(s) under that Act which says so.

The truth is, the enemy combatant you were referring to is detained under a Presidential Military Order, which is enacted under a mandate by Congress exercising its war powers.

:"This very controversial and unpopular piece of legislation gives sweeping powers to the U.S. President to detain not just aliens but people deemed ‘enemy combatants’ and unlawful combatants who could be non-U.S. citizens or U.S. citizens."

This very controversial and unpopular piece of legislation gives sweeping powers to the U.S. President and is instrumental in the detention without charge and without counsel of a U.S. citizen, and not just aliens, once designated by the U.S. President as being an ‘enemy combatant’.

Art, I think you have done enough to convince me that your findings on the ISA vis-a-vis the Patriot Act and the Terrorism Acts are correct. The ISA is an outdated piece of legislation that has no place in modern times. The Human Rights Commission of Malaysia supports this view too. The former AG and several senior judges are part of this commission. I wonder if statistics were provided on all the arrests made since the inception of the ISA, how many of these detainees were actually charged for the acts they purportedly committed? The ISA appears to be a very convenient tool to detain and deprive a person of his liberty, without having to give any reason, the authorities are not under any compulsion to submit evidence of their suspicions and when released without being charged, no reasons are necessary again.

As the late Oliver Wendell Holmes taught once, the law should develop based on the felt necessities of the time, the prevalent moral and political theories. On these three limbs, I verily believe that the ISA fails.

For some, they will only see the injustice of the ISA once arrested under the said act.

Bro, as usual excellent piece and discourse and analysis in the comments section.

Although you really shouldn't pay any attention to those who just spout rubbish and are too gutless to put their names up

But even when you are patiently explaining to these people who actually don't care and will just contradict you for the sake of it, at least we all get to learn and benefit from your learned replies to them.

I was a student activist during my time as an undergrad and was in the direct line of tear gas canisters in our face-offs with the FRU during student protests against the Internal Security Act.

Various laws since were passed to stifle political dissent. But the danger from terrorism is real and remains real. Just as the danger from anarchists and communists terrorists, who were willing to use any means necessary to achieve victory, was real. Some argue that the danger from Islamic terrorism to Malaysia as a country is imagined, somewhat exaggerated and is not real since Malaysia herself is an Islamic country and has at different times been the meeting place of Muslim extremists from other Muslim countries. If you factor out religious extremists, what remains are right wing Malay extremists and anarchists bent on de-stabilizing the nation. If UMNO is ousted from power the danger from such elements is real and immediate – not as remote as many would like to think. How many thought UMNO would have lost control of five states in their life time? “Times They Are A-Changin” says Bob Dylan.

Do you really want to do away with an Act like this one? We do away with it now and then have it resurrected in another form later when the situation requires? There are three other preventive detention laws in addition to the ISA. The Emergency (Public Order and Prevention of Crime) Ordinance, the Dangerous Drugs (Special Preventive Measures) Act, and the Restricted Residence Act. They all allow detention without charge and trial. What do we do with them?

As a lawyer there can be no compromise on the issue of civil liberties. I understand that. It is the same all over the free world. Imagine yourself a politician if you’re not already one. Would you rather see your country free but chaotic and unstable? Of course one hopes one does not have to choose. But more often than not, that’s a privilege few have and the occasions even fewer.

Like Ani, I would conclude that you are a cyber trooper, possibly a paid whore, possibly doing this in support of your masters.

If you are indeed what you claim to be, recognise this and I quote JB, "The ISA appears to be a very convenient tool to detain and deprive a person of his liberty, without having to give any reason, the authorities are not under any compulsion to submit evidence of their suspicions and when released without being charged, no reasons are necessary again." We have seen it time and again. Teresa Kok for instance, and others before and after.

A law that detains with out not just just cause but without fact or reason (other then self-serving). That is the ISA. It could be used against someone like you one day if you just chose to sing a different tune.

"The ISA appears to be a very convenient tool to detain and deprive a person of his liberty, without having to give any reason, the authorities are not under any compulsion to submit evidence of their suspicions ..." birdbrain

Parliament reversed by statute the legal burden of proof which normally lies on the party who alleges i.e. the accuser, to prove his allegation, to prove what he asserts and put it on to the party alleged or accused. The shoe goes on to the other leg. Of course, this is wrong because it goes against the presumption of innocence. Also how does one go about proving one's innocence without first knowing what the evidence is or what the crime is.

To safeguard against abuse by the executive, there was the judicial review. If the government is concerned, for example, that their intelligence sources may be compromised, the judge can always look at the evidence and decide.

The right to judicial review was removed by Mahathir. This should be reinstated.

Ahh yes, the hallmark of the troll and/or whore/cyber trooper. Descend into name calling when all else fails. I raised the possibility of the fact that you might be one of the above but you chose to explicitly name call.

Laughing? ROFLMAO man, your stupidity is indeed profound but I must say entertaining for it's laugh value :). Understand this under the ISA there is no burden of proof required. If that basic fact escapes you it leaves me to wonder how they let you out of diapers in the first place :)

Whoa...I left this place unattended for a day and a half and it managed to reproduce some venom...lol!

Anon, I read with interest on your last post on the reversal of burden of proof. You did not say under what law is this reversal taking place. Since we are talking about the ISA I presume you are talking about the ISA.

I however beg to differ from your view as such. Under the ISA there is no reversal of burden of proof. Simply put, the government is not required to prove anything at all. They just detain.

Granted the detainee may file a habeas corpus application. Even without the limitation which DrM regime had imposed, the government is still not required to prove anything at the hearing of the habeas corpus.

As you would know, the Court, while hearing a habeas corpus, would not have a trial of all the facts relied by the government. In a judicial review, the Court could just look into whether the government's action has been "unreasonable or irrational". Bad faith is a factor which goes to showing unreasonableness or irrationality. In the RPK case, we have managed to expand this to a situation where there was a "jurisdictional error" in the Anisminic sense.

Be that as it may, reversal of burden of proof does not directly come into play as the Court would not and could not, in a judicial review, substitute its judgement for that of the government. That means, on the assumption that the set of facts relied upon by the government are all true and accurate, the Court would not substitute its judgement for that of the government's simply because the Court arrives at a different conclusion than the government on those facts. The Court could only look into whether the government's act was reasonable or rational.

In the earlier cases, and one of such cases was when Karpal had his first brush with the ISA, at a time when the Alliance government under the Tunku’s leadership was more fair, more willing and more open and transparent, more tolerant of political dissent and more responsive to public opinion unlike today.

Karpal asked to see the evidence as he could not defend himself without first seeing the evidence the government has against him. It is necessary to answer the question as to how has he become a threat to national security. The evidence turned out to be nothing more than a collection of speeches he made at rallies, newspaper cuttings and whatever evidence a government witness in the case present at the rallies could offer to the court. I believe, and I’m working from memory, there was a discussion in that case, about the presumption of innocence and the legal burden of proof. This was a ‘60s case.

By requiring the prisoner to show cause why he or she should not be detained, the Act in effect reverses the legal burden of proof. As you know this goes against the presumption of innocence upon which the country’s justice system is built.

Yes, that was eons ago but the law has remained mostly the same except for the repeal of key provisions pertaining to the right of judicial review. What has changed though is the mood of the government and the extent it was prepared to go to detain someone without affording the detainee the rights of due process.

About Me

Art Harun believes that he is a failed government experiment, abandoned and left alone to roam the streets after all remedial efforts yielded no positive result. He calls himself a non-governmental organism, practices law for a living and tries very hard to play guitar, sing, race cars and write some stuffs to stay alive.